2021 New Mexico Statutes
Chapter 44 - Miscellaneous Civil Law Matters
Article 2 - Mandamus
Section 44-2-3 - [Exclusive original jurisdiction; district and supreme courts.]

The district court has exclusive original jurisdiction in all cases of mandamus, except where such writ is to be directed to a district court or a judge thereof in his official capacity, in which case the supreme court has exclusive original jurisdiction, and in such cases the supreme court or a judge thereof shall first make a rule, returnable in term, that such district court or judge thereof, show cause before the court why a peremptory writ of mandamus should not issue, and upon the return day of such rule such district court or judge may show cause against the rule by affidavit or record, evidence, and upon the hearing thereof, the supreme court shall award a peremptory writ, or dismiss the rule. In case of emergency, a judge of the supreme court, at the time of making the rule to show cause, may also appoint a special term of the court for hearing the motion, and at which the rule shall be made returnable.

History: Laws 1884, ch. 1, § 48; C.L. 1884, § 2003; C.L. 1897, § 2771; Code 1915, § 3423; C.S. 1929, § 86-113; 1941 Comp., § 26-103; 1953 Comp., § 22-12-3.

Cross references. — For the constitutional provision granting the supreme court original jurisdiction in mandamus, against state offices, boards and commissions, and power to issue writs of mandamus for the complete exercise of its jurisdiction, see N.M. Const., art. VI, § 3.

For the terms, sessions and recesses of the supreme court, see N.M. Const., art. VI, § 7.

For the power of the district courts to issue mandamus, see N.M. Const., art. VI, § 13.

For extraordinary writs in the supreme court, see Rule 12-504 NMRA.

Supreme Court of New Mexico exercises constitutionally invested original jurisdiction in mandamus against all state officers, boards and commissions. State ex rel. Sego v. Kirkpatrick, 1974-NMSC-059, 86 N.M. 359, 524 P.2d 975.

Issuance of mandamus by the Supreme Court. — The exercise of the Supreme Court's original jurisdiction in mandamus may be appropriate when the petitioner presents a purely legal question concerning the non-discretionary duty of a government official that implicates fundamental constitutional questions of great public importance, can be answered on the basis of virtually undisputed facts, and calls for an expeditious resolution that cannot be obtained through other channels such as a direct appeal. State ex rel. Sandel v. N.M. Public Utility Comm'n, 1999-NMSC-019, 127 N.M. 272, 980 P.2d 55; In re. Adjustments to Franchise Fees Required by Electric Utility Industry Restructuring Act of 1999, 2000-NMSC-035, 129 N.M. 78, 14 P.3d 525.

Mandamus appropriate on issue of proper way to conduct primary election. — Where petitioners, twenty-seven county clerks, and respondent, the New Mexico secretary of state, submitted a stipulated petition for an emergency writ to compel the secretary of state to mail absentee ballots directly to all registered voters in lieu of conducting in-person voting for the June 2020 primary election, claiming that the primary election was scheduled amidst a global pandemic and national statewide public health emergency, that in-person voting could not be conducted safely under those circumstances, and that the requested relief was necessary to protect the health of election workers, voters, and the general public, and where intervenors argued that the Election Code, §§ 1-1-1 to 1-26-6 NMSA 1978, does not allow elections to be conducted entirely by mail and that it would violate separation of powers principles for a non-legislative branch of government to implement an alternative election procedure, mandamus was appropriate because the case involved a fundamental constitutional question of great public importance, involved a legal rather than a factual dispute, and required an expeditious resolution. State ex rel. Riddle v. Toulouse Oliver, 2021-NMSC-018.

The New Mexico secretary of state had a nondiscretionary duty to ensure that the 2020 primary election held during a pandemic was conducted in compliance with the Election Code and executive and public health orders. — Where petitioners, twenty-seven county clerks, and respondent, the New Mexico secretary of state, submitted a stipulated petition for an emergency writ to compel the secretary of state to mail absentee ballots directly to all registered voters in lieu of conducting in-person voting for the June 2020 primary election, claiming that the primary election was scheduled amidst a global pandemic and national statewide public health emergency, that in-person voting could not be conducted safely under those circumstances, and that the requested relief was necessary to protect the health of election workers, voters, and the general public, and where intervenors argued that the Election Code, §§ 1-1-1 to 1-26-6 NMSA 1978, does not allow elections to be conducted entirely by mail and that it would violate separation of powers principles for a non-legislative branch of government to implement an alternative election procedure, the New Mexico supreme court denied petitioners' and respondent's requested relief because the Election Code does not permit the secretary of state to mail absentee ballots directly to voters without a prior request from the voter, but the supreme court issued its writ of mandamus to compel the secretary of state to mail absentee ballot applications to every eligible voter in New Mexico, because the secretary of state had an affirmative duty to conduct elections in full compliance with the Election Code, which requires that all statewide primary and general elections offer both in-person voting and absentee voting options, and an affirmative duty to comply with all pandemic-related executive and public health orders, which required the secretary of state to take all lawful steps to minimize the spread of COVID-19. As the chief election officer of the state, respondent had a duty to manage the election in a manner that minimized the risk of spreading COVID-19 and in a manner that protected lives by helping voters stay home as much as possible. State ex rel. Riddle v. Toulouse Oliver, 2021-NMSC-018.

Original proceeding in mandamus. — A mandamus petition for an order precluding the governor from implementing compacts and revenue-sharing agreements with Indian tribes which would permit gaming on Indian lands pursuant to the federal Indian Gaming Regulatory Act was properly brought before the supreme court in an original proceeding. State ex rel. Clark v. Johnson, 1995-NMSC-048, 120 N.M. 562, 904 P.2d 11.

Jurisdiction given supreme court by this section is limited by Sections 44-2-4 and 44-2-5 NMSA 1978. State ex rel. Sweeney v. Second Judicial Dist., 1912-NMSC-033, 17 N.M. 282, 127 P. 23.

Judgment of district court in mandamus proceedings may be modified on appeal. Territory ex rel. Coler v. Board of County Comm'rs, 1907-NMSC-018, 14 N.M. 134, 89 P. 252, aff'd, 215 U.S. 296, 30 S. Ct. 111, 54 L. Ed. 202 (1909).

Law reviews. — For article, "Mandamus in New Mexico," see 4 N.M. L. Rev. 155 (1974).

For note, "Mandamus Proceedings Against Public Officials: State of New Mexico ex rel. Bird v. Apodaca," see 9 N.M.L. Rev. 195 (1978-79).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 52 Am. Jur. 2d Mandamus §§ 12 to 15, 21 to 26, 432, 433.

Discretion of appellate court to refuse exercise of its original jurisdiction to issue writs of mandamus, 165 A.L.R. 1431.

55 C.J.S. Mandamus §§ 240, 272 to 274.